by Mark Wilson

The Oregon Court of Appeals reversed a first-degree failure to appear conviction, finding that the release agreement allowed for an appearance through counsel rather than personal appearance.

Zachary Michael Lobue was detained in jail when the State of Oregon charged him with possession of a stolen vehicle on January 28, 2017. Lobue was released from jail on March 24, 2017, pursuant to a release agreement that required him to appear in court on May 1, 2017 “and all other dates.”

The trial court held a “35-day call hearing” on May 1, 2017. Lobue’s attorney was present, but he was not. The trial court issued an arrest warrant, and the State charged Lobue with a felony failure to appear.

The failure to appear charge proceeded to trial, and Lobue moved for judgment of acquittal after the state rested. He asserted that the prosecution had failed to prove that the release agreement required him to personally appear. Lobue further argued that he was not guilty of failure to appear because the agreement did not require his personal appearance. The trial court denied the motion, agreeing with the State that the release agreement impliedly required his personal appearance.

The Oregon Court of Appeals reversed, holding that the trial court applied the wrong legal standard and that the release agreement did not require Lobue’s personal appearance.

“In criminal cases, just as in civil cases, a party’s ‘appearance’ in a legal matter need not always be personal, but often may be accomplished through appearance through counsel,” the Ccourt observed. “Appearance through counsel in criminal matters has been statutorily provided for in Oregon since 1955.”

The Court explained that the question turned upon whether the release agreement unambiguously required Lobue’s personal appearance at the 35-day call hearing. “Release agreements are contracts and we interpret them, for the most part, like any other contract,” the court observed.

Noting that “the parties agree that the plain terms of the release agreement do not specify personal appearance,” the court rejected the State’s argument that such a requirement may be inferred.

“Because the release agreement in this case did not unambiguously require defendant’s personal appearance at the 35-day call hearing — a hearing of a type where no statute requires the personal appearance of a criminal defendant — and because it is undisputed that defendant appeared through counsel at that hearing,” the Court reversed, holding that the trial court erred in denying Lobue’s motion for judgment of acquittal. See: State v. Lobue, 300 Or App 340, _ P3d _ (Ore. App 2019).

Subscribe today

Already a subscriber? Login

Related legal case